How A Gambling Case Does, And Doesn't, Apply To The iPhone Debate

The 227-year-old law at the center of the Apple-FBI debate has withstood several challenges, including at the Supreme Court.

Xinhua News Agency/Getty Images

Listen

Listening...

/

Originally published on March 21, 2016 9:01 pm

Editor's Note: This article has been updated to reflect the news that the federal judge has granted the government's request for a delay in the case, giving the FBI time to test a new method of cracking the iPhone without Apple's help.

The Justice Department is testing out a new way of getting inside the locked iPhone used by one of the San Bernardino shooters — one that doesn't involve Apple's help.

If the new alternative proves viable and resolves the legal standoff between Apple and the FBI, it will leave unanswered the question of the scope of the government's power to compel an unwilling company's technical assistance.

That question rests on how widely the government can apply an 18th-century law called the All Writs Act. Its wording is so short, it fits into two tweets (if u know how 2 abbreviate). And it's come under fire for being old — described as antiquated, even "inept," in a recent congressional hearing.

It may be tempting to dismiss All Writs, as it's called. But it's been at the crux of the debate in court, and each party will stand by a different interpretation of one specific case: United States v. New York Telephone. While the Supreme Court has had quite a few cases involving law enforcement and access to digital data, this one in 1977 is the last time the justices applied All Writs to a telecommunication provider.

The FBI was trying to bust an illegal gambling ring at 220 E. 14th Street in Manhattan. The investigators wanted to track all outgoing calls and identify co-conspirators. As Steve Vladeck, a law professor at American University, explains, the FBI "needed technical assistance from the phone company to actually install the analog 1970s-era equipment."

The phone company, New York Telephone, was happy to point out the specific wires linked to the two landline telephones in question. And the company told the FBI: Go ahead and string some cables from the gamblers' apartment to wherever you want to set up your monitoring.

But the FBI essentially said: We can't string cable — it would tip off the bad guys. The investigators had another idea: The phone company would give them some spare phone lines, right next to the gamblers' lines to let the investigators use another, more discreet, tracking technique.

"The phone company objected because they weren't a party to the case; they didn't think they had to comply," Vladeck says.

The company argued it wasn't part of the investigation or the criminal wrongdoing, it was just a third-party phone provider — plus, it had helped out plenty already.

In a 5-4 decision, the Supreme Court disagreed with New York Telephone. Justice Byron White wrote for the majority:

"We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed. We conclude, however, that the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress."

There are key differences between that case and the legal standoff between Apple and the FBI. First, New York Telephone was, as the majority opinion stated, "a highly regulated public utility with a duty to serve the public." Apple is not. And second, the FBI is asking Apple to write code that does not yet exist.

Vladeck says it's a much higher burden. "I personally think there is a very big difference between a court order to a phone company to simply help the government do something the phone company already has the capacity to do," he says, and "an order commanding the company to devise software it does not already possess."

And Vladeck makes an interesting sub-point, referencing another case that involves the FBI and a locked iPhone in Brooklyn. In the San Bernardino case, a judge has already ruled Apple has to write code to help the FBI unlock an iOS 9 phone; in the Brooklyn case, another judge ruled that Apple does not have to hand over code it has already written to the FBI, to help unlock the older iOS 7 operating system.

"That's entirely backwards," Vladeck says.

Lawyer Joe DeMarco has a different take: "Even innocent bystanders are required to assist the police if the police ask for their help."

DeMarco, who has filed a friend-of-the-court brief in the California case on behalf of law enforcement groups, cites one case in Connecticut, in which a fight broke out in a workplace. A single police officer came on the scene. He called for backup, which had not yet arrived. "And as the police officer was trying to subdue the person who was making a ruckus at the company," DeMarco says, "the police officer called out to a security guard asking for the security guard to help."

DeMarco says if it's reasonable to expect a private citizen to jump into a fistfight to help the police, then it seems to follow that it's reasonable for a company to write some lines of code for one particular phone.

In the San Bernardino case, the FBI is now scheduled to file a status report on its testing of the new method by April 5.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

ROBERT SIEGEL, HOST:

Tomorrow, the Justice Department and Apple square off in a federal court in California. This is over the locked iPhone used by one of the San Bernardino shooters. The case by prosecutors rests on an 18th century law - the All Writs Act - enacted in 1789. It has been described as antiquated and inept, and given its age, you might think it's irrelevant to modern technology. NPR's Aarti Shahani takes a look at whether that's true.

AARTI SHAHANI, BYLINE: We're going to look at the last time the Supreme Court applied All Writs to a telecommunication provider. It was 1977. The FBI was trying to bust an illegal gambling ring at 220 East 14th Street, Manhattan. They wanted to track all outgoing calls, ID co-conspirators. And as Steve Vladeck, law professor at American University, explains...

STEVE VLADECK: They needed technical assistance from the phone company to actually install the, you know, analog 1970s-era equipment.

SHAHANI: New York Telephone happily pointed out the specific wires linked to the two telephones in question, and they told the FBI, go ahead and string some cables from the gamblers' apartment to wherever it is you want to set up your monitoring.

But the FBI said, we can't string cable; that'll tip off the bad guys. So here's another idea. You give us some spare phone lines right next to the gamblers' lines, then we can use another technique that's discreet to track them.

VLADECK: The phone company objected because they weren't a party to the case. They didn't think they had to comply.

SHAHANI: Meaning they werenât part of the gambling ring. They're just the phone provider, and they helped out plenty already. Well, in a 5 to 4 decision, the Supreme Court disagreed with New York Telephone.

VLADECK: Under the All Writs Act, as long as the government was only seeking, quote,

"reasonable technical assistance," unquote, a third party like the phone company could be compelled to comply.

SHAHANI: Now, there are key differences between that case and this iPhone one. First, New York Telephone was a highly regulated public utility with a duty to serve the public. Apple is not. An second, the FBI is asking Apple to write code that does not yet exist. Steve Vladeck says it's a much higher burden.

VLADECK: I personally think there's a very big difference between a court order to a phone company to simply help the government do something the phone company already has the capacity to do and an order commanding the company to devise software it does not already possess.

SHAHANI: Joseph DeMarco has a different take.

JOSEPH DEMARCO: Even innocent bystanders are required to assist the police if the police ask for their help.

SHAHANI: DeMarco filed a friend-of-the-court brief in California on behalf of sheriffs. He recalls this one case in Connecticut. A fight broke out in a workplace. A single police officer came on the scene. He called for backup which had not yet arrived.

DEMARCO: And as the police officer was trying to subdue the person who was making a ruckus at the company, the police officer called out to a security guard, asking for the security guard to help. The security guard refused to help.

SHAHANI: And later, he ended up getting slapped with criminal charges for it. DeMarco says if it's reasonable to expect a private citizen to jump into a fist fight to help the police, then it seems to follow that it's reasonable for a company to write some lines of code for one particular phone. Aarti Shahani, NPR News. Transcript provided by NPR, Copyright NPR.